The Complicated Kim Davis Case

I have some questions for both sides in the case of Kim Davis, the Kentucky county clerk refusing to issue marriage licenses because licensing same-sex couples would violate her religious beliefs. For the record, I agree with the moral and religious stance Davis, a registered Democrat, is taking, but believe that as an officer of the state charged with upholding the law, she ought to resign her position if she cannot fulfill her duties.

But the case is more complicated than partisans on both sides seem to think. Here are a few questions it raises.

1. Let’s say it’s 2005. Davis is the county clerk in a liberal northern California enclave, and a devout Unitarian Universalist who believes it is unjust to deny marriage to same-sex couples. She says her office will refuse to issue marriage licenses for anybody until the state recognizes the right of gays to marriage, and she claims religious liberty protections. Is she right?

2. Let’s say the US Supreme Court rules in favor of the religious liberty rights of a conservative Christian plaintiff, and orders a local government office to cease its discrimination. The officer refuses, saying to obey the court would violate her religious freedom. Is she right?

3. Let’s stipulate that just because something is legal does not make it morally right, and let’s further stipulate that for religious believers, God’s law is more important than man’s law. (This is why I think Davis should resign rather than obey what she considers to be a seriously immoral law.) What would happen to law and order if all government officials — not private individuals, but government officials — reserved to themselves the right to obey the law in the discharge of their duties only insofar as the law was consonant with their religious beliefs? For example, many sincere Christians believe that immigration restriction is immoral. What if officials in the Southwest began refusing to enforce federal immigration law, citing religious liberty?

4. I understand the temptation to point to Davis’s four marriages and laugh at her apparent hypocrisy. “Look, the big Christian is a hypocrite!” etc. But how many people realize that her religious conversion was fairly recent, about four years ago? And how many people on the left see dragging her messy past into it as a form of “slut-shaming,” which they usually reject, and reject vehemently? Mollie Hemingway writes:

You might be confused right now why it became OK for the media to slut-shame someone. Usually they’re complaining about it, such as when some well-meaning woman tells college co-eds to watch their alcohol intake before heading over to an out-of-control frat party. It’s good to remember, however, that slut-shaming by the media is permissible — welcome, even — so long as the victim is a political opponent.

And opposing the redefinition of marriage is pretty much grounds for instant excommunication in our elite religion. As a result, Nelson has all the gory details about her supposed “hypocrisy” and “selective application of the Bible to her life.” So did each of these divorces take place in the last four years? It wouldn’t actually be a sufficient proof of hypocrisy if each of these divorces took place since 2010, but it would be a necessary requirement for them to take place within the time period she was Christian.

Which they did not. Davis says that her conversion changed her life completely. More Mollie:

Now, any personal failings on her part are actually irrelevant to her legal argument, however much fun the media has in slut-shaming her. But I am hard-pressed to understand how she can be a hypocrite for failing to perfectly adhere to teachings of a religion she wasn’t even part of!

First, whenever we get to that elusive and ever-receding “hill to die on,” we will discover, upon our arrival there, that it only looked like a hill to die on from a distance. Up close, when the possible dying is also up close, it kind of looks like every other hill. All of a sudden it looks like a hill to stay alive on, covered over with topsoil that looks suspiciously like common ground.

So it turns out that surrendering hills is not the best way to train for defending the most important ones. Retreat is habit-forming.

He’s objecting to my statement that Christians are going to have to fight some tough battles ahead, and that Davis has chosen the wrong hill to die on. Here’s why he feels so strongly about supporting Davis:

The point here is not just private conscience. The right to liberty of conscience is at play with florists, bakers, and so on. But Kim Davis is not just keeping herself from sinning, she is preventing Rowan County from sinning. That is part of her job.

Every Christian elected official should be determining, within the scope of their duties, which lines they will not allow the state to cross. When they come to that line, they should refuse to cross it because “this is against the law of God.” They should do this as part of their official responsibilities. This is part of their job. It is one of the things they swear to do when they take office.

So Christians have to protect the democratic state against itself? Besides, if the Christian official is a strictly traditionalist Roman Catholic who believes in Pope Pius IX’s Syllabus of Errors, which, if he followed Doug Wilson’s advice, would put Calvinists like Doug Wilson in a very bad position vis-à-vis the state. I suppose Wilson might deny that the traditionalist Catholic is actually a Christian, but that being the case, good luck trying to convince the rest of the country that it ought to be ruled only by the standards of Calvinists.

Wilson says that he wants massive disobedience of the law by Christian state officials regarding enforcing same-sex marriage laws, and in turn for the state to have to fire those officials:

Some might ask what the good in that would be. Wouldn’t it just result in no Christians in such positions? Perhaps, but it would be far better to have godless results enforced by the godless than to insist that the godly do it for them. It would be far better to have the “no Christians in power results” when it was actually the case that no Christians were in power. I would rather have non-Christian clerks acting like non-Christian clerks than to have Christian clerks do it for them. I mean, right?

Don’t tell believers to stay engaged so that they can make a difference, and then, when they start making a difference, tell them that this is not a hill to die on.

I might be wrong, but Wilson seems to be of the opinion that obstreperousness is next to godliness. He is advocating here that Christian officials, in the words Robert Bolt gave to Sir Thomas More, “cut a great road through the law to get to the devil”:

What would Christians do when the law protects their liberty, but Social Justice Warriors in local government refuse to obey the law, citing a higher law?

I’ll say it again: if Davis, a state official, believes that obeying man’s law is contrary to God’s law, she should resign. To live by the principle that Christians in government are not obliged to obey the law in the discharge of their official duties is a very dangerous one to take for Christians. Traditionalist, orthodox Christians are a minority in this country, and are going to become ever more despised. The day is coming when the only protection many of us can rely on is the law, and the willingness of government officers to obey the law, even though they hate us. And so, my final question:

6. Is the principle that the More of Bolt’s play powerfully elucidates really something we can afford to take lightly?

UPDATE: I ought to have said that yes, there are other considerations in play when a Christian is, say, an official of the Nazi state. I believe it would be heroic if the Christian used her position to undermine the state. Wilson brings up the Nazi example, and also cannibalism. I do not think it is helpful to clear, prudent thinking about the proper relationship of Christian government officials to the law to invoke the most extreme possible examples. We are not living under Nazi totalitarianism. Jews are not being shipped to ovens on the orders of the government. To behave as if the stakes were really that high in the case of gay marriage in the USA is to seriously distort things. I believe Obergefell was an unrighteous decision, one that is going to have serious and deleterious long-term consequences. It’s not the Nuremberg Laws.

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223 Responses to The Complicated Kim Davis Case

“NFR: I don’t know, to be honest. I can see it going both ways. I think if I were in her job, I would have to resign as a matter of conscience, but I’m not willing to say that all orthodox Christians are bound to be that strict with themselves. Maybe I should be willing to say that; maybe you can convince me. I do believe, with Justice Scalia, that if you are an official of the state and you are not willing to uphold the law because you have a serious issue of conscience over a particular law, then you should resign. I could not serve as governor of Louisiana because ours is a death penalty state, and my conscience would be too troubled to faithfully execute (ahem!) the laws of the state of Louisiana in that respect. But there are many other laws that I might personally disagree with, but would have no trouble enforcing, because they aren’t as critically important as the death penalty. — RD]”

I don’t know if I can convince you because I’m not 100% certain of the answer! 🙂 Nonetheless, I lean towards thinking maybe it’s a job a devout Christian shouldn’t pursue. Now, the response is, “But what about divorce?” Well, maybe that just means we’ve got a lot of repenting to do, a long ways back.

As far as this clerk (and my mother is a circuit court clerk as well, and I don’t know what she should do if faced with this…so I care deeply about this issue), I have to respect anyone willing to sit in jail for their conscience, and I also respect the moxie in a person that makes the officials fire him/her via jail and impeachment.

Overall, though, my biggest concern is that by failing to engage in dozens and dozens of little skirmishes, pushing back on all sides, you won’t have the freedom/space/peace to pursue the Benedict Option? For while someone like Wilson is temperamentally more of a fighter than you (which is fine all around…it takes all kinds of people) what he has done in Idaho is a quasi-Benedict Option worth exploring. What if the only way to achieve it requires regularly going behind enemy lines to ‘disrupt’ their activities (i.e. to fight).

I hardly think that anyone in More’s England could be burned for holding Protestant thoughts.

Yes, and a Christian during the reign of Nero, Caligula, Diocletian, and some others, could not be tortured or sent to the lions for “thinking Christian thoughts,” only for refusing to burn incense to the gods (an act, if a negative one) or engaging in proscribed rites (e.g. communion, when Christians gathered to drink the blood of a kidnapped Roman baby, or so it was believed).

As a matter of fact, it was when he had been tricked into stating positively that parliament had no power to declare the kind head of the church that he could be convicted. There is no question this was tricked out of him, after all his efforts to maintain silence, but he did utter it. On balance, I don’t admire More, but then, I don’t admire the king he served either.

As for comparing rules against interracial marriage and rules against interreligious marriage, I think you are mixing apples with oranges.

I agree, so long as the authority of The State is not put behind any positive law prohibiting inter-religious marriage, and provided no religious authority has the power to physically coerce a person not to marry. I respect the choice of people who will not marry outside their faith. I also respect the choice of people who embrace an inter-religious marriage, because this is the person I love and no other. But I don’t view the former as in any was analogous to refusing an inter-racial marriage… albeit, if you don’t WANT to marry a person of another race, you won’t, and there is no reason why you should.

Peace, civility and order existed in the US prior to the SCOTUS taking on the role of administrator for social justice.

But as was pointed out many times in The Federalist Papers, without a tribunal capable of reviewing the constitutionality of legislative acts, there is no constitution, and the legislature is the judge of its own compliance. (Ref. Mark Twain, “nobody’s life, liberty or property are safe while the legislature is in session.”)

When Obama and the democratic party refuse to enforce immigration laws…

Are you referring to the record number of deportations on President Obama’s watch?

Or are you referring to a prudential decision prioritizing the deployment of limited government resources, and providing for an orderly process to give due notice of who is, or is not, high on the list for immediate attention?

Do you believe all orthodox Christian court clerks should resign?

Answering for myself, not for Rod, to whom Isadore directed the question, no. Only those orthodox Christian court clerks should resign who cannot or will not sign documents that the law designates them to sign, and citizens rely on them to sign, in accordance with the positive law of the polity in which they serve as court clerks.

M_Young, ” faithfully execute the duties of my office without favor, affection or partiality,” is quite sufficient to impeach her for her willful inaction. The precise source or nature or scope of the duty does not need to be specified.

As a matter of fact, it was when he had been tricked into stating positively that parliament had no power to declare the kind head of the church that he could be convicted. There is no question this was tricked out of him, after all his efforts to maintain silence, but he did utter it.

Based on Rich’s perjured testimony? More denied Rich’s claim and when Rich called two witnesses to aid his perjury both refused to assist.

“Slut shaming” is when people try to shame a person for her/his sexual promiscuity.

When, on the other hand, a Senator from LA rants and raves about licentiousness and is then found to hire prostitutes to spank him while he wears a diaper, what happens to him (besides reelection) is not slut shaming. It’s hypocrisy shaming.

Devout Christians don’t own the laws of this country any more than they own the laws of God, and despite the evident belief of some to the contrary, they are not entitled to change either to suit their own needs (without going through the proper channels). Supposing that both homosexuality and divorce are sins in the eyes of God, who is it that has determined that God considers divorce to be more a more forgivable sin than homosexuality? This to me is an admirable, if misguided, example of civil disobedience in that Kim Davis is willing to go to jail for her her beliefs. Hooray for her. It is also a clear cut example of why we have a separation of church and state.

There was a time when a Christian could not be in good standing if they served in the Roman army. (At a later date, nobody could serve in the Roman army who was not a Christian.)

Loudon, it is possible that Rich was committing rank perjury, woven out of whole cloth. That is certainly what was dramatized in A Man For All Seasons. It is not what was dramatized in The Tudors. Neither is per se a reliable source. You may have studied citations to the documentary record, and you may be right.

Bolt takes his dramatization from Roper. I haven’t seen The Tudors but I suspect, to the extent it’s at all historical, it follows Hilary Mantel’s novelizations. Mantel is heavily influenced by the Whig-Protestant historian Geoffrey Elton. I think Elton believes More slipped in his conversation with Rich, which was evidently the presentation in The Tudors. But it’s not clear why Elton believes this (and apparently ignores Roper’s account of the trial) other than that a claim of Rich’s perjury is inconsistent with Elton’s embrace of a Henrician revolution pursuant to which the monstrous man ushers in modern government and saves England from medievalism.

“Wolf Hall” earlier this year probably gave the best dramatic interpretation of the whole More vs Henry VIII business, capturing More’s rigidity and fanaticism yet also some of the pathos of his situation; Henry VIII’s growing tyranny and instability; and both the witchiness and ultimate tragedy of Anne Boleyn– her execution scene was ore chilling than any of the multitudinous murders on Game of Thrones (perhaps because it was minimally gory but so minutely accurate to history). The mini-series however did apply gallons of whitewash to Thomas Cromwell however.

Maybe it makes enjoyable drama, but as it regards both More and Cromwell it’s fiction. Again, Mantel (the author of the books on which the miniseries is based) takes her cues from the Whig-Protestant historian Geoffrey Elton. More was hardly a fanatic. His son in law was a Lutheran. More didn’t burn him. He tried to persuade him, and when that didn’t work he prayed for him. More wrote poems, The Life of Pico and Utopia. More was a man of letters and the arts and a defender of the rule of law and role of conscience. Like Erasmus he as a Christian humanist. Wolf Hall is appealing because it enforces our modern conceits: medievals were ISIS-like Catholic religious fanatics, but then the modern state came along to free men and their consciences and, most importantly, their penises (it had to execute 70,000 people to do it, but you don’t make an omelet . . .). But there is no greater defender of conscience in the Henrician revolution than More, not that you’ll read that from Mantel. Probably because Mantel has never read More.

Wolf Hall is interesting, but not for the reasons commonly noted. If we like Wolf Hall because it confirms our prejudices, but Wolf Hall is a lie, what does that say about our prejudices?

I don’t want to seem overly contentious about these issues of More, but Mantel’s recent popularization of More as fanatic is deeply troubling. More was a model of Christian humanism. If our understanding of the long march of history can be summarized as “Tyrants will crush religious fanatics and it will be bloody and tragic, but eventually the fanatics will all be dead and reason can prevail” then there will be dark days ahead.

Elton’s embrace of a Henrician revolution pursuant to which the monstrous man ushers in modern government and saves England from medievalism.

That is, I think, a more interesting and salient point than whether More actually said what he thought or not. A lot of things happen in history for venal reasons or evil motives that have long-delayed good outcomes.

I once remarked to a WELS Lutheran pastor (one of the most conservative Protestant denominations in the US, and perfectly nice folks I can testify from years of association), that if not for the unhallowed lusts of Henry VIII, there would have been no refuge in North America for his ancestors to have fled to from the liberalizing official state church of Prussia and a united Germany.

Why not? England would likely not have become Protestant, North America would not have become Protestant, the Protestant faith would have at most been an enclave of north central Europe and the Scandinavian countries, Baptists would have been a very tiny sect, if they survived at all…

The pastor cheerfully acknowledged this, and said it had all been done by God, for God’s own purposes.

Now it is true that Henry’s son Edward V was a sincere Protestant (although as far as I recall his mother was Roman Catholic), and Archbishop Cranmer acquired sufficient Protestant piety to accept martyrdom rather than recant under Bloody Mary. Probably some of the middle class of east Anglia would have become Calvinist anyway. But it was the increasingly Protestant identity of Britain, and the rising power of the British navy, and presence of British culture and population in an expanded part of the world, that made the Protestant forms of Christianity a force to be reckoned with. Henry probably had no motives other than his own aggrandizement.

Incidentally, I recently read a review of a book which suggests that Ann Boleyn came into conflict with Cromwell, thought as queen she could shorten him by a head of she wished, and Cromwell methodically went about framing her on the charges that ultimately brought her down.

First of all, it is very dangerous to choose “God’s” law over law of the land because others who do not share our *Kim Davis) religious belief can make the same claims and disobey a law meant to protect our values. For example, what if Muslims in this country insists on Allah’s commandment to stoning to death an adulterous wife or a adult daughter or sister insist on marrying for love without the parents’ consent or insist on marrying off their underage girls?

Secondly, when the Christian Right in this country claim “religious liberty,” it often feels more righteous than right. There was a time, it was God’s law to enslave black people, forbid interracial marriage, forbid women working outside the homes, or simple forbid men working on Sundays. There are many God’s laws that the Christians have now universally abandoned, so how do we know this is one to still keep?

To Rod’s “update” approving of the lower official’s hypothetical interposition to save Jews in Nazi Germany, I look forward to your post encouraging state and local officials to reject Roe’s redefinition of babies as “non persons” and for them to begin to arrest abortionists. By your own words and reasoning, this should be the “hill to die on”. So please be an advocate for this because the holocaust is greater here than in Germany unless Wilson is on to something and you only identify safe hills and hills from which to flee.

I look forward to your post encouraging state and local officials to reject Roe’s redefinition of babies as “non persons” and for them to begin to arrest abortionists.

Poor choice of verb. Justice Blackmun and his clerks diligently searched the applicable lines of case law for ANY precedent that recognized a fetus as a person, and could find none. Nor could Wade’s attorneys, or any amicus curiae, identify any.

Let’s get to the core of the argument. Many wise and well-informed citizens believe that the SCOTUS ruling on gay marriage was an abuse of power and a distortion of the law. Judges Roberts and Scalia, being among them. Their dissenting opinion was not simply that they disagreed with the majority decision, but that the decision was actually unlawful. It violated the authority of the Court; it created law, which is the sole responsibility of the Legislature. That being said, some of us will not accept the ruling, and we will fight to correct it. The very idea of giving gay marriage the standing of settled law is preposterous. Our founding documents were based upon nature and nature’s God, and there has never been a time when gay marriage had the standing of being natural in the history of the world. Some of us will never accept that five unelected judges can have the power to create such a law. Davis is fighting a battle that must be fought. Why should she resign; she was elected to her office. She took an oath to abide by the laws of Kentucky, which laws have not been rewritten. Will we submit to the coercion to opt out of our civic responsibilities merely because some progressive liberals, who hate the Constitution and want to change it, want to excise us from any influence in society. We have already yielded too much. Look what has happened in our schools, which are now agents of atheism. Consider the alteration of our morals to the extent that millions of infants are now lawfully slaughtered and their parts sold for research. This is the red line that must not be crossed. It is shocking to hear Christians, like the one who wrote this article, actually argue for us to submit to a government so ungodly. There is no Scriptural grounds for doing so.

James West, have you read Roberts’s and Scalia’s dissents? The former is an erudite analysis of what is jurisprudentially wrong with the majority decision. The latter is a hysterical screed unworthy of the paper required to print it.

I agree that some very important legal terms and concepts were badly warped to arrive at the faulty decision in Obergefell. I also suspect that even if it is overturned, in twenty years or so most people will consider a gay couple getting a marriage license so routine that its not going away. Its no preposterous, its not a violation of anything in particular in our founding documents, and reference to “nature and nature’s God” is from the Declaration of Independence (a document written to justify rebellion), not the constitution (a document setting forth the limited jurisdiction of civil government).

I wish all judges were unelected. Nothing perverts the judicial process like electing judges, especially in an era when the losing side of big-money cases can pour millions of dollars into slandering whatever judge is up for re-election who didn’t vote the way the plaintiff wanted.

Davis should resign because she is unwilling to do her job, and willfully obstructs anyone who tried to do it in her office. You don’t have to submit to an ungodly government — but you may get thrown to the lions, and you can’t count on being remembered as a hero ten centuries later.

i am curious. so i ask the following:
in a way, wouldn’t it be denying herself religious freedom by simply resigning her post? if christians simply all resign, wouldn’t they be saying in essence, ‘because we disagree religiously with the government we are ineligible for these jobs’. suddenly, self-discrimination is expected of christians simply because they are the meeker party (in general). it seems that if the government is going to make room for some citizens to express their religious freedom (or alternative lifestyle), it should also allow room for other citizens to maintain their religious freedom.
is this wrong thinking?

You constructed your question as a false analogy. The deciding factor is where the expression is taking place, not the form or “style” of the expression.

Consider this alternative, which I’ve personally witnessed many times: a Christian judge ruling in a divorce case decides that one party, being a Pagan, is for that reason only prohibited from both custody and visitation of the children in that family.

Think about that: denied access to his or her own children solely on the basis of a religious objection.

Times are changing rapidly. Someone like Ms. Davis cannot take for granted that her religious beliefs can be expressed in her official duties. Like the judge in the divorce example, she must by law do her civic duty despite her beliefs.

That is not a matter of religious freedom. It is a matter of the ethical conduct defined and implied by taking an oath of office.

Franklin is correct. The criteria for a person invested with an office charged with carrying out the law is whether they have adhered to the law, and the standards provided for by law, not whether they personally approve.

A mother who is habitually drunk and violent inflicts certain behavior that is in fact a violation of the law on her child. A mother who is pagan does not, ipso facto, do so. A mother who does in fact adhere to a sect that practices infant sacrifice may well be a danger to her child — but it is the practice of infant sacrifice, not the name or number of the gods invoked, that poses a legally cognizable danger.

Sorry Franklin. I really didn’t know it was such a sore spot. I used it as a convenient extreme that is unlikely to appear in any actual set of facts before any court, as a counter-point, to define the parameters of what I was saying.

I should note that there was a small group of people in southern Texas some twenty years ago, who purported to be some sort of pagan cult with a young lady of twenty-something years being some sort of revered high priestess, who actually tried to kidnap and sacrifice someone. I can’t recall if they actually killed anyone.

I would say the same of this little group as I do of SOME of the “lone wolf” jihadis… they are probably mentally ill characters who happened upon some language that provided a cover and a pretext for acting out their particular personal psychoses, rather than being practitioners of any coherent faith.

Courts have to be ready to make fine distinctions, often in the face of a spate of popular hysteria, however short-lived.

Good analysis Rod, but you’re missing an important piece. Consider this: Esteemed constitutional scholar Michael Stokes Paulsen takes the position that all sworn government officials — not just the black robed — have the obligation to interpret and apply the constitution. This is what Pres. Lincoln believed, as Paulsen argues in First Things. http://www.firstthings.com/article/2015/05/the-great-interpreter

Well, it’s not the idea that Kim was married 4 times, (and I don’t believe in slut shaming) but its that her religion FORBIDS divorce. She’s willing to be okay with her past, but not willing to give loving couples a future? That, my friends, is hypocrisy at its finest! She can not play God with others, if she is not willing to play God with herself.